Citation Nr: 0027801
Decision Date: 10/20/00 Archive Date: 10/26/00
DOCKET NO. 99-11 258A ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Denver,
Colorado
THE ISSUE
Entitlement to service connection for tinnitus.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
M. Taylor, Associate Counsel
INTRODUCTION
The veteran had active duty from December October 1967 to
July 1969, to include service in Vietnam. His awards and
decorations include the Purple Heart Medal and the Bronze
Star Medal.
This matter is before the Board of Veterans' Appeals (Board)
on appeal of a May 1999 rating decision from the Denver,
Colorado, Department of Veterans Affairs (VA) Regional Office
(RO), which continued the evaluation for a shell fragment
would to the right shoulder with a scar, Muscle Group I, at
10 percent and denied service connection for hearing loss and
tinnitus. The veteran filed a Notice of Disagreement only as
to the issue of tinnitus.
FINDING OF FACT
The claim of entitlement to service connection for tinnitus
is not supported by competent evidence linking current
tinnitus, first documented many years after service, to
service, including combat/noise exposure.
CONCLUSION OF LAW
The claim of entitlement to service connection for tinnitus
is not well grounded. 38 U.S.C.A. § 5107 (West 1991).
REASONS AND BASES FOR FINDING AND CONCLUSION
Factual Background
The veteran had active duty from October 1967 to July 1969,
to include service in Vietnam, and is in receipt of the
Purple Heart Medal and Bronze Star Medal.
Service medical records do not show complaint or findings of
tinnitus. The service entrance examination, dated in August
1967, shows that the veteran's ears and drums were normal.
On the accompanying medical history he denied having had ear
trouble but reported hearing loss. The report of separation,
dated in July 1969, shows that the veteran's ears and drums
were normal. His hearing was assigned a physical profile of
"1." On the accompanying medical history form the veteran
denied having or having had ear trouble. Again, he indicated
a history of hearing loss. No defects were noted.
In his initial claim for VA disability benefits, received in
1969, the veteran claimed residuals of a shell fragment wound
and hearing loss. In association with that claim he
underwent a VA general medical examination and an
audiological evaluation. The report of general medical
examination, dated in July 1970, notes that the veteran was
in a field artillery gun crew and believed he sustained
hearing loss. Physical examination revealed that the
eardrums were pale and somewhat retracted, left greater than
right. The general medical examiner indicated that a hearing
loss was noted and diagnosed hearing loss. There is no
mention of tinnitus contained in the report. The
audiological evaluation showed normal hearing throughout 6000
hertz and on speech reception testing. 38 C.F.R. § 3.385;
Hensley v. Brown, 5 Vet. App. 155 (1993).
In a statement dated in October 1998, the veteran asserted
that he has tinnitus as a result of acoustic trauma during
service.
On VA examination in February 1999, the veteran reported a
history of noise exposure during service and that his current
occupation was diesel mechanic foreman. The report of
audiological evaluation notes that the veteran reporetd
having bilateral tinnitus, described as a constant ringing,
and that he had had artillery noise exposure in the Army.
The veteran also gave a 10 plus year history of gradual
hearing loss.
In his Notice of Disagreement, dated in May 1999, the veteran
reported that he was exposed to noise during combat in
Vietnam. He indicated that the inservice acoustic trauma
resulted in tinnitus.
Criteria
Pursuant to 38 U.S.C.A. § 5107(a), a person who submits a
claim for benefits under a law administered by the Secretary
shall have the burden of submitting evidence sufficient to
justify a belief by a fair and impartial individual that the
claim is well grounded. The United States Court of Appeals
for Veterans Claims (Court) has held that "[A] person who
submits a claim for benefits under a law administered by the
Secretary shall have the burden of submitting evidence
sufficient to justify a belief by a fair and impartial
individual that the claim is well grounded." 38 U.S.C.A. §
5107(a); Carbino v. Gober, 10 Vet. App. 507 (1997); Anderson
v. Brown, 9 Vet. App. 542, 545 (1996).
A well-grounded claim is "a plausible claim, one which
is meritorious on its own or capable of substantiation. Such
a claim need not be conclusive but only possible to satisfy
the initial burden of § [5107(a)]."
Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990).
The Court has held that although a claim need not be
conclusive, the statute provides that it must be accompanied
by evidence that justifies a "belief by a fair and impartial
individual" that the claim is plausible. Tirpak v.
Derwinski, 2 Vet. App. 609, 610 (1992).
The Court has also held that "where the determinative issue
involves medical causation or a medical diagnosis, competent
medical evidence to the effect that the claim is 'plausible'
or 'possible' is required." Heuer v. Brown, 7 Vet. App.
379, 384 (1995); Grottveit v. Brown, 5 Vet. App. 91, 93
(1993) (citing Murphy, at 81).
A well-grounded claim requires competent evidence of current
disability (a medical diagnosis), of incurrence or
aggravation of a disease or injury in service (lay or medical
evidence), and of a nexus between the in-service injury or
disease and the current disability (medical evidence). See
Epps v. Brown, 126 F.3d. 1464, 1468 (Fed. Cir. 1997); Caluza
v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604
(Fed. Cir. 1996).
Service connection may be established for a disability
resulting from personal injury suffered or disease contracted
in the line of duty or for aggravation of a preexisting
injury suffered or disease contracted in the line of duty.
38 U.S.C.A. § 1110 (West 1991).
The Court has held that that term "service-connection," as
used in section 1154(b), refers to proof of incurrence or
aggravation of a disease or injury in service, as opposed to
the legal standard for establishing entitlement to payments
for disability. Medical nexus evidence and evidence of a
current disability are still required to be submitted.
Kessel v. West, 13 Vet. App. 9 (1999); see Clyburn v. West,
12 Vet. App. 296, 303 (1999).
In the case of any veteran who engaged in combat with the
enemy in active service during a period of war, campaign, or
expedition, the Secretary shall accept as sufficient proof of
service-connection of any disease or injury alleged to have
been incurred in or aggravated by such service satisfactory
lay or other evidence of service incurrence or aggravation of
such injury or disease, if consistent with the circumstances,
conditions, or hardships of such service, notwithstanding the
fact that there is no official record of such incurrence or
aggravation in such service. Service-connection of such
injury or disease may be rebutted by clear and convincing
evidence to the contrary. 38 U.S.C.A. § 1154(b) (West 1991).
The Court held that section 1154(b) necessarily focuses upon
past combat service and, for this reason, it does not
constitute a substitute for evidence of current disability,
causal nexus between a combat service injury or disease and a
current disability, or the continuation of symptoms
subsequent to service. Kessel v West, 13 Vet. App 9 (1999).
The Court has held that section 1154(b) provides a benefit
for a combat veteran in that it relaxes the evidentiary
requirement regarding the service incurrence or aggravation
of a disease or injury in service. Beausoleil v. Brown, 8
Vet. App. 459, 464 (1996). For purposes of submitting a
well-grounded claim, a combat veteran's statements, standing
alone, will generally be sufficient to establish the service-
incurrence element. Nolen v. West, 12 Vet. App. 347, 350
(1999).
Service connection may be granted for any disease diagnosed
after discharge, when all the evidence, including that
pertinent to service, establishes that the disease was
incurred in service. 38 C.F.R. § 3.303(d) (1999).
Analysis
The threshold question to be decided in the veteran's appeal
is whether he has presented evidence of a well-grounded
claim. "[A] person who submits a claim for benefits under a
law administered by the Secretary shall have the burden of
submitting evidence sufficient to justify a belief by a fair
and impartial individual that the claim is well grounded."
38 U.S.C.A. § 5107(a); Carbino v. Gober, 10 Vet. App. 507
(1997); Anderson v. Brown, 9 Vet. App. 542, 545 (1996).
Section 5107 of Title 38, United States Code unequivocally
places an initial burden upon the veteran to produce evidence
that his claim is well-grounded; that is, that his claim is
plausible. Grivois v. Brown, 6 Vet. App. 136, 139 (1994);
Grottveit v. Brown, 5 Vet. App. 91, 92 (1993).
Service medical records do not reflect any complaints or
findings of tinnitus, and the veteran has not claimed that
tinnitus began in service. Rather, he argues that it is due
to acoustic trauma during combat in Vietnam. When he filed
his initial claim for VA disability benefits in 1960, he
mentioned hearing loss but not tinnitus, and the initial
medical evidence of tinnitus is in the 1990s, decades after
service.
Inasmuch as the veteran has asserted that his tinnitus is
related to noise exposure as an incident of military/combat
service, and the evidence shows that he engaged in combat,
the provisions of 38 U.S.C.A. § 1154(b) apply. In such
cases, satisfactory lay or other evidence that an injury or
disease was incurred or aggravated in combat will be accepted
as sufficient proof of service incurrence if the evidence is
consistent with the circumstances, conditions or hardships of
such service even though there is no official record of such
incurrence or aggravation in such service, and, to that end,
every reasonable doubt shall be resolved in favor of the
veteran. See 38 U.S.C.A. §1154(b) (West 1991); 38 C.F.R. §
3.304(d). However, these provisions deal with the question
of whether a particular disease or injury occurred in
service, that is, what happened then, and not the question of
either current disability or nexus to service, both of which
generally require competent medical evidence. In short, the
above-cited provisions do not presumptively establish service
connection for a combat veteran; rather, they relax the
evidentiary requirements for determining what happened in
service. See Brock v. Brown, 10 Vet. App. 155, 162 (1997);
Libertine v. Brown, 9 Vet. App. 521, 524 (1996). The veteran
must still establish that his claim is well grounded by
medical evidence showing a nexus between a current disability
and the reported service incident. See Caluza v. Brown, 7
Vet. App. 498, 507 (1995).
In the present case, while the veteran's claim of exposure to
acoustic trauma is consistent with the circumstances of his
service, competent medical evidence must be submitted to make
the claim well grounded. Lay assertions of medical causation
cannot constitute evidence to render a claim well grounded if
no cognizable evidence is submitted to support a claim.
Grottveit v. Brown, 5 Vet. App. 91, 92-93 (1993). Thus,
since there is no allegation or evidence that tinnitus had
its onset in service, but only the veteran's opinion that it
resulted from in-service acoustic trauma, competent medical
evidence or opinion is necessary to relate any current
tinnitus to service, including any in-service acoustic
trauma. The veteran has failed to provide such evidence.
As the claimed tinnitus has not been linked to service by
competent medical evidence, the claim of entitlement to
service connection for tinnitus is not well grounded.
38 U.S.C.A. § 5107(a) (West 1991). The Court has held that
if the appellant fails to submit a well-grounded claim, VA
is under no duty to assist in any
further development of the claim. 38 U.S.C.A. § 5107(a);
Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); Grottveit v.
Brown, 5 Vet. App. 91, 93 (1993); 38 C.F.R. § 3.159(a)
(1999).
The veteran's service representative contends that VA has
expanded its duty to assist because it is required to fully
develop a claim before making a decision on claims that are
not well-grounded. In support of this contention the
representative cites provisions of the VA Adjudication
Procedure Manual M21-1. Subsequent to the revisions to the
M21-1, in Meyer v. Brown, 9 Vet. App. 425 (1996), the Court
held that the Board is not required to remand a claim
for additional development, in
accordance with 38 C.F.R. § 19.9 (1999) prior to determining
that a claim is not well-grounded. In addition, it was more
recently held that under 38 U.S.C.A. § 5107(a), VA has a duty
to assist only those appellants who have established well-
grounded claims. Epps v. Gober, 126 F.3d 1464, 1469 (Fed.
Cir. 1997). The Board is not bound by an administrative
issuance that is in conflict with binding judicial decisions,
and the Court's holdings on the issue of VA's duty to assist
in connection with the well-grounded claim determination are
quite clear. Bernard v. Brown, 4 Vet. App. 384, 394 (1993);
38 C.F.R. § 19.5 (1999). Thus, the representative's argument
is without merit.
Pursuant to 38 U.S.C.A. § 5103(a), if VA is placed on notice
of the possible existence of information that would render
the claim plausible, and therefore well grounded, VA has the
duty to advise the appellant of the necessity to obtain the
information. McKnight v. Gober, 131 F.3d 1483, 1484-1485
(Fed. Cir. 1997); Robinette v. Brown, 8 Vet. App. 69, 80
(1995). However, such evidence must be identified with some
degree of specificity; with an indication that the evidence
exists and that it would well ground the claim. See Carbino
v. Gober, 10 Vet. App. 507, 510 (1997).
As the veteran's claim for service connection for tinnitus is
not well grounded, the doctrine of reasonable doubt has no
application.
The Board views its foregoing discussion as sufficient to
inform the veteran of the elements necessary to complete his
application for service connection. See Graves v. Brown, 8
Vet. App. 522 (1996); Robinette v. Brown, 8 Vet. App. 69, 77-
78 (1995); McKnight v. Gober, 131 F.3d 1483 (Fed. Cir. 1997);
Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997).
ORDER
Service connection for tinnitus is denied.
JANE E. SHARP
Veterans Law Judge
Board of Veterans' Appeals